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United States District Court, E.D. North Carolina, Eastern Division, Admiralty

September 25, 2017

M/V CHARAZZ EX-SIP'N'TIME NC 7055 DF HIN#RPGUSA13A900, her boats, tackle, apparel, furniture, engines, fishing history and permits, and appurtenances, etc., in rem, and GRAND SLAM YACHT & BOAT SALES LLC; WILTON CARLYLE GAY; and JAMES ALLEN HINDS, in Personam, Defendants.


          James C. Dever, III Chief United States District Judge.

         Albert G. Vandermeer ("Vandermeer" or "plaintiff") seeks to recover damages for personal injuries he sustained in a boating accident. See Am. Compl. [D.E. 7]. On October 2, 2016, Wilton Carlyle Gay ("Gay" or "defendant") moved for summary judgment [D.E. 58-60]. On October 26, 2016, Vandermeer responded in opposition [D.E. 68-72]. On November 9, 2016, Gay replied [D.E. 76]. As explained below, the court denies Gay's motion for summary judgment.


         On February 2, 2013, a boating accident occurred in the Bogue Sound Area of the Atlantic Intercoastal Waterway in Carteret County, North Carolina. See Am. Compl. [D.E. 7] ¶ 17; Answer [D.E. 38] ¶ 17. At the time, M/V SIP'N'TIME (later M/V CHARAZZ) ("the vessel") was undergoing a sea-trial to ensure that all systems were operational as a routine part of the sale of the vessel to a new owner. Am. Compl. ¶ 20; Answer ¶ 20. The buyer, Dale Rasmussen ("Rasmussen"), hired Vandermeer, a marine surveyor, to conduct a survey of the vessel and, in particular, to inspect recent repairs to the engine. Am. Compl. ¶ 13; Answer ¶ 13. Gay owned the vessel and retained defendants Grand Slam Yacht and Boat Sales, LLC ("Grand Slam") and James Hinds ("Hinds") to broker the sale. Am. Compl. ¶¶ 8-9; Answer ¶¶ 8-9.

         Hinds's daughter, Lois Hinds Brooks ("Brooks"), owns and operates Grand Slam. Brooks Dep. 9:1 [D.E. 72-1] 3. According to Brooks, she is the sole owner, manager, and operator of Grand Slam, and never employed Hinds. Brooks Dep. 10:2-4, 9:1 [D.E. 72-1] 3. According to Hinds, he is an independent subcontractor who acted through his own corporation, Tale Dancer Charters (d/b/a Just Add Water Boat Sales). Hinds Dep. 16:2-5 [D.E. 66-1] 2. Gay did not know the details of the relationship between Grand Slam and Hinds, but believed that Hinds was a Grand Slam employee at all relevant times. See Gay Dep. 12:19-25 [D.E. 72-2] 3.

         On February 2, 2013, Vandermeer, Hinds, Rasmussen, and another unidentified individual, [D.E. 72-2] 6, were onboard the vessel conducting a pre-purchase sea-trial. Am. Compl. ¶¶ 17, 20. Two prior sea-trials had been conducted, during which Vandermeer noticed fiberglass delamination and engine problems. See Vandermeer Dep. 38:3-10 [D.E. 72-3] 10. On February 2, 2013, the parties undertook another sea-trial to ensure that the repairs had been completed correctly. [D.E. 59] ¶ 14; [D.E. 69] ¶ 14. During this sea-trial, Vandermeer wanted to test the engines at a high RPM to determine if they would operate properly under those conditions without overheating or losing oil pressure. See Vandermeer Dep. 62:5-24 [D.E. 72-3] 16. Gay was not available to operate the vessel during the sea-trial. Thus, pursuant to Brooks's request, Gay authorized Hinds to operate the vessel for the sea-trial. [D.E. 71-1]; Gay Dep. 31-32 [D.E. 72-2] 8.

         Hinds navigated the vessel by steering in a zig-zag manner between the markers denoting the channel. Vandermeer Dep. 56:8-22 [D.E. 72-3] 14. Over the course of approximately thirty minutes, Vandermeer observed the relevant instruments and successfully completed his survey. Id. 57:19 [D.E. 72-3] 15. Shortly thereafter, the boat ran hard aground, [1] decelerating from a speed between 30 and 35 knots to stopped within a matter of seconds. Id. 58:21-25 [D.E. 72-3] 15.[2]

         During the grounding, Vandermeer fell down the companionway into the vessel's main cabin and sustained injuries to his "head, shoulder, arm, back[, ] and other body parts." Am. Compl. ¶¶ 32-33. Vandermeer "experienced immediate excruciating pain, light-headedness, physical impairments[, ] and numbness." Id. ¶ 34. Vandermeer was "diagnosed with numerous permanent physical injuries, including, ... 7 broken vertebrae, ... a broken shoulder, [and] breaks of multiple spinous processes." Id. ¶ 40. Vandermeer also has undergone "serious and life-altering surgeries for fusion of his L4-L5 spinal bodies, shoulder surgery, and other procedures." Id. ¶ 41.


         The parties dispute whether to apply North Carolina law or federal admiralty law. Gay contends that North Carolina's common law of negligence, not federal admiralty law, applies because: (1) Vandermeer pled "a traditional state court cause of action" by alleging negligence in the complaint, [D.E. 76] 2; see Am. Compl. ¶¶ 43-46; and (2) Vandermeer never asserted a negligence claim against Gay as owner of the vessel. See [D.E. 76] 2.

         Generally, a federal court hearing a tort claim will apply the substantive tort law of the state where the federal court sits. See, e.g.. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). However, recovery for a "tort committed on navigable water, whether brought under federal admiralty jurisdiction, in state court under the saving-to-suitors clause, or in federal court under diversity jurisdiction, [is] governed by admiralty law." Byrd v. Byrd, 657 F.2d 615, 617 (4th Cir. 1981); see Kermarec v. Compagnie Generate Transatlantique, 358 U.S. 625, 628 (1959). Federal courts decide admiralty cases under admiralty jurisdiction, according to the substantive law of admiralty. See E. River S.S. Corp. v. Transamerica Delaval. Inc., 476 U.S. 858, 864 (1986); Kermarec, 358 U.S. at 628; Md. Dep't of Nat. Res, v. Kellum, 51 F.3d 1220, 1223 (4th Cir. 1995). When sitting in admiralty, a federal court may supplement federal admiralty law with state law where there is no directly applicable admiralty law. See Ost-West-Handel Bruno Bischoff GmbH v. Project Asia Line. Inc., 160 F.3d 170, 174 (4th Cir. 1998); Byrd, 657 F.2d at 617.

         Vandermeer's amended complaint identifies this case as an action "under the Admiralty and Maritime Law of the United States." Am. Compl. ¶ 1. It also references Federal Rule of Civil Procedure 9(h), which deals exclusively with admiralty and maritime claims, and 28 U.S.C. § 1333 and 46 U.S.C. § 30103 et seq.. which are admiralty statutes. See Id. Furthermore, the amended complaint alleges that Vandermeer and all defendants are citizens of North Carolina, which destroys complete diversity under 28 U.S.C. § 1332. Id. ¶¶2-5. The amended complaint then discusses the facts (id. ¶¶ 16-42) and raises a single cause of action-negligence-against all defendants. See Id. ¶¶ 43-46. The amended complaint does not reference North Carolina law. Having reviewed the record and governing law, the court concludes that federal admiralty law applies.

         As for Gay's argument that Vandermeer cannot hold Gay liable for his alleged negligence as owner of the vessel because Vandermeer did not explicitly raise this legal theory in the amended complaint, the court rejects the argument. Generally, parties may not use summary judgment as a vehicle for asserting new claims not contained in the complaint. See, e.g.. Gilbert v. Deutsche Bank Tr. Co. Ams., No. 4:09-CV-181-D, 2017 WL 1012981, at *2 n.2 (E.D. N.C. Mar. 14, 2017) (unpublished); Hexion Specialty Chems., Inc. v. Oak-Bark Corp., No. 7:09-CV-105-D, 2011 WL 4527382, at *7 (E.D. N.C. Sept. 28, 2011) (unpublished) (collecting cases). The pleading requirements under the federal rules and relevant cases require a short and plain statement of the claim showing that the pleader is entitled to relief and giving the defendant adequate notice of the nature of the claims against him. See Fed.R.Civ.P. 8(a), 9(h); Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562-63, 570 (2007); Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 566 U.S. 30 (2012); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008); accord Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam); Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). To survive a motion to dismiss, a plaintiff must allege facts sufficient to plausibly allege a claim for relief, but need not assert a legal theory. See Johnson v. City of Shelby, 135 S.Ct. 346, 346 (2014) (per curiam); 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1215 (3d ed. 2017); 2-8 James Wm. Moore, Moore's Federal Practice - Civil § 8.04 (2017); see also Hanson v. Hoffman, 628 F.2d 42, 53 (D.C. Cir. 1980); Hostrop v. Bd. of Jr. College Dist. No. 515. Cook & Will Ctys. & State of Ill., 523 F.2d 569.581 (7th Cir. 1975): Nagler v. Admiral Corp., 248 F.2d 319. 325 n.9 (2d Cir. 1957). Twombly and Iqbal "concern the factual allegations a complaint must contain, " but do not require that plaintiffs assert a legal theory for relief. See City of Shelby, 135 S.Ct. at 347. In fact, when assessing a complaint's sufficiency, courts do not look to the legal conclusions in the complaint. See, e.g.. Iqbal, 556 U.S. at 677-79. Likewise, plaintiffs need not use "any precise or magical words in [their] pleading[s]" or proper legal-theory headings to state a claim for relief under Rule 8(a). See King v. Rubenstein, 825 F.3d 206, 222 (4th Cir. 2016) (quotation omitted).

         Notice pleading requires that a complaint put a defendant on notice of the claims against him. Sometimes where a plaintiff does plead a legal theory, recovery on a different legal theory is barred if the defendant had no notice of the different theory. See Ruivo v. Wells Fargo Bank. N.A., 766 F.3d 87, 91 (1st Cir. 2014) (holding that pleading a state statutory action did not give notice of common-law fraud claim); Marie v. Am. Red Cross,771 F.3d 344, 365 (6th Cir. 2014) (holding that pleading Title VII and 42 U.S.C. § 1983 claims did not give notice of a claim under Bivens). Gay invokes this line of cases and ...

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